Frequently asked questions: Orders

Posted Mon, June 24th, 2013 8:48 am by Amy Howe

We expect the Court to issue orders from the June 20 Conference today at 9:30 a.m. (All times are Eastern.) We will be live blogging beginning at around 9 a.m. We have put together a list of some of the commonly asked questions about orders that we have received during recent live blogs, along with our responses, but please let us know during the live blog if you have a question that you don’t see answered here.

Question: What are orders?

Answer: Orders are actions that the Court took at its most recent Conference, last Thursday. They are released to the public and the press as a list. Two of the most common kinds of orders (and the ones in which we tend to be most interested) are orders granting or denying requests to review a case on the merits – actions known as granting or denying “cert.” (short for “certiorari”).

Question: What is the difference between “orders” and “opinions”?

Answer: Orders are actions by the Court on a case; they usually have little or no explanation accompanying them – the Court simply grants or denies cert. in a particular case, for example. Opinions are longer explanations by the Court (or one or more Justices) of the reasoning behind (or the objection to) a particular action. When we are talking about the order list, we generally think first of the orders granting or denying review, but the order list can contain many other kinds of orders, including orders granting or denying permission to divide up argument time, allowing or rejecting briefs that were filed too late, appointing lawyers to argue in a particular case, and denying requests to consider cases again.

Question: What is the difference between “orders” and “grants”?

Grants are orders granting review in a particular case. The cases are then slated for briefing on the merits and an eventual oral argument. Grants appear on the order list, and are often the orders in which we are most interested, but not all orders on the order list are grants. (See above.)

Question: What does it mean if, for example, the Court grants certiorari “limited to question one”?

Answer: For the lion’s share of cases, the Court has near-total discretion not only with regard to what cases it choose to review on the merits, but also with regard to what issues it reviews in those cases. So although the parties seeking Supreme Court review must identify the questions that they are asking the Court to review (that is, they are not just asking the Court to decide whether the entire lower court’s decision was right or wrong), the Court can decide to only review some of the issues presented in the case. In that scenario, the Court’s order granting review might say something like “[t]he petition for a writ of certiorari is granted limited to Question 1 of the petition.” But the Court could also opt to review an entirely different question, or to reword the question that it was asked to review. In that scenario, the order list might say something like “[t]he petition for a writ of certiorari is granted limited to the following question: . . . .”

Question: If the Court only granted four cases (or some other number), does that mean the rest were denied?

No. Although most of the cases that are up for review will be denied, the fact that the Court didn’t grant a case doesn’t automatically mean that the case is denied, as the answers to the next few questions explain.

Question: What does “the Court did not act” mean?

Answer: When we say that “the Court did not act” on a particular case, that literally means that there is nothing in the order list about that particular case. But you can often learn more about the possible fate of the case as soon as later in the day. (See below.)

Question: What does it mean for the Court to hold a case?

Answer: When the Court is holding a case, that means that it is waiting to act on the case until some later, unspecified time. A “hold” does not appear on the order list; the case’s electronic docket simply will not reflect any further action. In most scenarios, a case is being held for one of two reasons: (1) the Court is already considering another case presenting a similar issue on the merits, and it believes that the resolution of that case could affect its decision on the held case; or (2) the Court is waiting for another petition for review, presenting a similar question, to be ready for it to consider. Unfortunately, the Court does not tell us why it is holding a case; although the reason is often fairly obvious, sometimes it can be harder to figure out.

Question: What does it mean for the Court to relist a case?

Answer: When a case is “relisted,” that means that it is set for reconsideration at the Justices’ next Conference. Unlike a hold, this will show up on the case’s electronic docket. A relist can mean several things, including the fairly straightforward prospect that one or more Justices wants to take a closer look at the case; that one or more Justices is trying to pick up enough votes to grant review (four are needed); that the Justices are writing a summary reversal (that is, a decision that the lower court opinion was so wrong that the Court can decide the case on the merits without briefing or oral argument); or that one or more Justices are writing a dissent from the decision to deny review.

Question: Who announces orders?

Answer: From the bench, the Chief Justice announces that the order list has been released. The order list itself is then distributed to the press corps and the public in hard copies, and made available on the Internet.

Question: Who is involved in the cert. decision making process?

Answer: The Justices themselves are the only ones who meet to determine whether cert. will be granted. However, given the large number of cert. petitions filed each year, the Justices’ clerks also play a role in the process of reviewing cert. petitions.

Question: How many votes does a case need for cert. to be granted?

Answer: Four.

Question: Why are there disbarments at the bottom of the order list?

Answer: An attorney can qualify for membership in the Supreme Court bar – which allows an attorney to serve as counsel of record in the Supreme Court, argue there, and (among other things) sit in the seats reserved for lawyers – by paying the application fee, filling out a form, and being a member in good standing of some other state’s bar. When an attorney is disbarred from a state bar, that will result in his or her also being disbarred from the Supreme Court bar, and the orders making those disbarments official appear on the order list.

Question: What is a CVSG?

Answer: “CVSG” stands for “call for the views of the Solicitor General.” Rather than decide initially whether to grant or deny review, the Court may ask the federal government to file a brief which makes a recommendation to the Court about what it should do with the case. This is especially common when the Court is considering a case in which the federal government is not involved, but which does have an interest – for example, cases involving the interpretation of a federal law or treaty. When the Court issues such an order (which normally “invite[s] the Solicitor General to file a brief expressing the views of the United States”), the parties to the case then have a chance to meet with the Solicitor General and his staff to explain why the United States should file a brief on their side. Once the brief from the federal government is filed (and there is no particular timetable for it to do so), the Court generally gives some weight to the Solicitor General’s view, although it is not dispositive.

Question: What is the SG?

Answer: “SG” stands for Solicitor General, the lawyer who represents the United States before the Supreme Court.

Upcoming Oral Arguments

3/31Kimble v. Marvel Enterprises, Inc. Whether the Court should overrule Brulotte v. Thys Co., which held that “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se”.

On Monday afternoon Justices Anthony Kennedy and Stephen Breyer testified before the House Appropriations Committee. The purpose of the hearing was to discuss the Court’s budget for the next fiscal year and the federal judiciary, but the legislators also took full advantage of the occasion to touch on other topics as well.